Knapp Logistics & Automation, Inc. v. R/X Automation Solutions, Inc.

Filing 36

ORDER re: ESI Discovery Protocol by Judge R. Brooke Jackson on 5/23/14. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 1:14-cv-00319-RBJ
KNAPP LOGISTICS AUTOMATION, INC., f/k/a KNAPP LOGISTICS & AUTOMATION,
INC.
Plaintiff,
v.
R/X AUTOMATION SOLUTIONS, INC., a Colorado Corporation
Defendant.
______________________________________________________________________________
STIPULATED ESI DISCOVERY PROTOCOL
Plaintiff Knapp Logistics Automation, Inc. (hereinafter referred to as “Knapp”, or
“Plaintiff”) and Defendant R/X Automation Solutions, Inc. (hereinafter referred to as “RXAS”,
or “Defendant”), hereby stipulate and agree to this Discovery Protocol.
1.

Electronically Stored Information (“ESI”). Discovery of ESI shall proceed in the

following sequenced fashion:
a. After receiving requests for document production, the producing party shall
comply with its discovery obligations to conduct a reasonable and good faith
search for responsive documents and ESI;
b. Each producing party retains its right to maintain that certain sources of ESI
are not reasonably accessible because of undue burden or cost, and they are
advised that the parties’ resources as indicated by their relative size is among

the factors under FRCP 26(b)(2)(C)(iii) in considering proportionality
principles as applied to the burden of discovery;
c. If an inaccessible or burdensome objection is made, the producing party shall
provide with the objection: i) a description of the ESI deemed inaccessible
including at least all storage media(s), location(s), and format(s) (if
applicable) for such information; ii) reason(s) why the ESI is deemed
inaccessible, and iii) search and retrieval capabilities, software, processes, and
cost estimates that would be necessary to access such ESI at each such
location.
2.

Materials Included in ESI Production. The following guidelines govern materials

included and excluded from ESI production presumptively covered by this Discovery Protocol.
a. ESI production includes documents and materials stored in electronic format.
b. Subject to the understanding that each party reserves all rights to object or
otherwise request, general ESI production responses will endeavor to include nonarchival ESI from September 17, 2001 on, except as agreed upon by the parties or
ordered by the Court.
c. The parties continue to work toward consensus regarding the language of section
2.c. As of the filing of this Proposed Order, each party proposes as follows:
Plaintiff Knapp:
If a party contends that relevant ESI is located only on back-up media, and if the parties
cannot agree on whether that back-up media should be searched, the issue will be handled
as provided by Fed. R. Civ. P. Rule 26(b)(2)(B).
Defendant RXAS:
Subject to the understanding that each party reserves its rights to object or otherwise
request if appropriate, initial ESI production responses, to the extent relevant, will
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include ESI data for only the period September 17, 2001 to May 20, 2005 existing only
on available archived data, where “archived data” means data no longer used by the party
in its day-to-day operations. If a party contends that relevant ESI is located only on backup media, and if the parties cannot agree on whether that back-up media should be
searched, the issue will be handled as provided by Fed. R. Civ. P. Rule 26(b)(2)(B).
d. Subject to the understanding that each party reserves its rights to request such
information if appropriate, the following categories of electronically stored
information need not be included in ESI production responses:
i. “deleted,” “slack,” “fragmented,” or “unallocated” data on hard drives;
ii. random access memory (RAM) or other ephemeral data;
iii. temporary on-line access data such as temporary internet files, history,
cache, cookies, etc.;
iv. voice mails not electronically indexed or otherwise known to be relevant
to the request; and
v. backup data that is substantially duplicative of data that is more accessible
elsewhere.

3.

ESI Production Format. ESI shall be produced according to the following

formats:
a. Image file format.
i. All documents shall be produced as Group IV single page TIFF format
files imaged at 300 dpi (preferred) or single or multi-page PDF format
files.

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ii. Each TIFF or PDF file shall be named with a unique name matching the
Bates number (image key) labeled on the corresponding page. The
filename should not contain any blank spaces and should be zero padded.
b. Volume Names. Each volume of production media must have its own unique
name and a consistent naming convention (e.g., ZZZ_001 or SMITH001)
must be used for every media delivery.
c. Data Load Files.
i. An image load file shall be provided that contains document and
document attachment boundaries.
ii. Full, extracted text from the body of each document will be produced in a
.dat file containing the beginning and ending document numbers with both
standard and Summation delimiters compatible with CT Summation
iBlaze 2.8.
d. Native Production Documents.
i. The parties will produce documents in native format for files created by
Excel or other spreadsheet programs, PowerPoint or other presentation
programs, database programs, audio and visual files, and any other file
types that reasonably require viewing in their native format for a full
understanding of their content and meaning.
ii. Web pages or HTML documents will be produced in HTML link active
PDF format. Linked information designated in produced web pages not
considered responsive need not be provided unless requested.

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iii. For files produced in native form, the parties will provide the file in native
format with all metadata intact.
iv. Native files should be produced with a file name indicating the Bates
number and an image placeholder in the load file marked with a Bates
number that that corresponds to the Natively produced file that states:
“This document produced in Native format.”
e. Confidentiality Designations.
i. All Confidential or Attorneys Eyes Only ESI (“Protected ESI”) shall be
designated in accordance with the terms of the Discovery Confidentiality
Order or Discovery Protective Order (or other protective order).
ii. For Protected ESI produced in image format (PDF or TIFF), the
production images shall be marked with the appropriate confidentiality
designation.
iii. For Protected ESI produced in native format, the file name shall contain
the appropriate confidentiality designation (e.g.,
SMITH0001_Confidential.xls). The corresponding image placeholder
noted in 3.d.iv. above shall also be marked with the appropriate
confidentiality designation.
4.

Metadata. Where available, and unless otherwise agreed, the parties shall produce
all automatically available metadata for each document in an accessible,
searchable form such as a .dat file or the like. Excepting only audio and video
files not otherwise having text available, all files will include a metadata field that
is the searchable, full text of the document (extracted from the body of the

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document or standard OCR generated including embedded Bates numbering on
each page).
5.

Email Production. The following specific requirements apply to email
productions.
a. Email production requests shall be responsive to the specific Requests for
Production posed, rather than as a general discovery of a product or business.
b. Email production requests shall be based on initial search terms to be
negotiated by the parties for posed requests. Search term combinations shall
be tailored to particular Requests for Production. Subject to the understanding
that each party reserves its rights to object if appropriate, the parties shall
cooperate to refine search terms based on results from the initial searches, if
necessary. Searches shall be conducted throughout all reasonably accessible
media, and archived data as indicated in 2c above. Resources and custodians
searched shall be identified.

6.

Cost Shifting.
a. Each party shall bear its own costs in responding to any requests for
discovery; however, each party shall have the right to request a shifting of
costs pursuant to Federal Rule of Civil Procedure 26 prior to providing the
required response, or to recover such costs as may be permitted by an award
of costs to a prevailing party.

7.

Paper Document Production:
a. Format. The parties shall produce documents maintained in paper format as
scanned images in accordance with the production format described in 3.a.-c.

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above. Paper documents may be scanned and produced in black and white
unless the producing party plans to rely on the color in the documents.
Additionally, the receiving party may request that documents produced in
black and white be produced or made available for inspection and copying in
color.
b. Confidentiality Designations.
i. All Confidential or Attorneys Eyes Only Paper Documents (“Protected
Paper Documents”) shall be designated in accordance with the terms of
the Discovery Confidentiality Order.
ii. For Protected Paper Documents scanned and produced in image format
(PDF or TIFF), the production images shall be marked with the
appropriate confidentiality designation.
8.

Inadvertent Disclosure.
a. The receiving party shall not thereafter use documents (either in electronic or
paper form) that the producing party later asserts are attorney-client privileged
or work product protected unless such assertion is denied by the Court.
b. The parties intend to invoke the protections of Federal Rule of Evidence 502,
and specifically 502(d) and (e). If a party discovers through any means that it
has inadvertently produced privileged materials, non-responsive information,
or information that the producing party has objected to producing (collectively
referred to as the “Inadvertently Produced Information”), the producing party
may provide written notice to the receiving party that the material was
inadvertently produced, which notice shall include a statement of the basis for

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the producing party’s contention that the material is privileged or is otherwise
non-responsive to any then-pending discovery requests, or subject to an
objection. After receiving such notice, the receiving party must promptly
return, sequester, or destroy the Inadvertently Produced Information and any
copies that it has. The receiving party may promptly present the Inadvertently
Produced Information to the Court under seal for a determination of whether
the information is discoverable and shall not use or disclose the information
until there is an agreement or adjudication that the material is discoverable. If
the receiving party disclosed the Inadvertently Produced Information before
being notified, it must take reasonable steps to retrieve it. The producing
party must preserve the Inadvertently Produced Information until all disputes
regarding the discoverability of the information have been resolved. This
protocol shall be deemed to comply with the party’s obligation to take
reasonable steps to prevent, identify and rectify inadvertent disclosure
pursuant to Fed. R. Evid. 502(b). Entry of this Order by the Court shall
specifically confer the rights and protections available to the parties under
Fed. R. Evid. 502(d) and (e).
9.

Other Objections. Nothing in this order shall prevent or limit a responding party

from serving any applicable objections to discovery requests not specifically mentioned in this
Discovery Protocol (e.g., relevance, privilege, overly burdensome, vague). Nor does any party
waive its right to argue that the application of this protocol to a particular request is unduly
burdensome or disproportionate.

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DATED at Denver, Colorado, this 23rd day of May, 2014.

BY THE COURT:

_______________________________
United States District Judge

APPROVED:
_/s/ Ann G. Fort_____________________
Ann G. Fort
Sutherland Asbill & Brennan LLP
999 Peachtree Street, NE
Atlanta, Georgia 30309

/s/ Alfred K. Wiedmann Jr._____________
Alfred K. Wiedmann Jr.
Santangelo Law Offices, P.C.
125 South Howes, 3rd Floor
Fort Collins, CO 80521

Attorney for Plaintiff

Attorney for Defendant

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